RAMBRIKSH SAH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE prayer of the petitioners in this application is that the order of Shri B. N. Charan, a Magistrate exercising first class powers at Sitamarhi dated 4th November, 1968, taking cognizance of an offence Under Section 395 of the Indian Penal Code alleged to have been committed by the petitioners, be quashed.

(2.) ON the 28th August, 1967, one Tarkeshwar Chawdhary lodged a first information report at Belsand Police Station in respect of an occurrence which had taken place at his house which was raided by six named and fifteen unnamed persona. Among the named culprits were five of the present petitioners. ON this report, the officer-in charge of Police Station registered a case under Sa. 147, 143, 323 and 380 of the Indian Penal Code. Subsequent upon visiting the scene of the occurrence the Investigating Police Officer realised that the case should have been registered Boder Section 896 of the Indian Penal Code. He took the statements of the different prosecution witnesses and ultimately submitted a final report indicating that it was a case of a mistake of fact. This final report, which was dated the 20th June, 1963, was received in court on 19th July, 1968 and after a consideration thereof the learned Magistrate passed the impugned order on the 4th November, 1968.

(3.) MR. Jogendra Misra, appearing in Support of this application contends that Shri Charan has really taken cognizance under Clause (c), which be had no authority to do, since a perusal of his order shows that while dealing with the final report submitted by the Investigating Officer he had also perused the materials contained in the Police diary and made use of the supervision notes prepared by the Deputy Superintendent of Police and the Superintendent of Police. The argument is that from the circumstance that the learned Magistrate made use of the materials contained in the Police diary and the supervision notes the position in law would be that he has taken action under Clause (c) and not under Clause (b) of Sub-section (1) Section 190 of the Code.